This Time, It’s Personal: Justice Scalia’s Increasing Incivility
When the U.S. Supreme Court ended its term July 1, Justice Antonin Scalia was more vindictive and isolated than ever. As the court’s most publicly confrontational justice, he repeatedly berates his colleagues. “The court must be living in another world,” as he put it. “Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”
Disagreements, even occasional lack of civility, on the high court are not new. The anti-Semitic Justice James C. McReynolds left the conference room whenever Justice Louis D. Brandeis spoke. In the 1940s, a quarrel between Justices Hugo L. Black and Robert H. Jackson broke open when the latter made public a telegram attacking Black that he had sent to the Senate, because he feared his rival might become chief justice. When Justice William O. Douglas got angry at Chief Justice Earl Warren, he refused to talk to him for a year.
Still, no justice has matched Scalia’s dogged determination to publicly and personally challenge colleagues’ views at every turn. Certainly, no other current justice shows as much contempt for colleagues. Notably, when responding to Scalia’s broadsides, they remain civil, rebutting his arguments without engaging in similar personal insults.
The lack of cordiality was heightened as crucial rulings last term did not go Scalia’s way or as far to the right as he wanted. Contrary to the court’s decisions, he would have kept the Virginia Military Institute an all-male preserve. States could still forbid localities from enacting laws protecting the rights of homosexuals. Elected officials would continue dealing in political favoritism, hiring and firing public employees at whim.
Moreover, Scalia would have gone much farther than more moderate conservative centrists, Justices Sandra Day O’Connor and Anthony M. Kennedy, on a number of other issues. Those justices, also appointed by Republican President Ronald Reagan, have been publicly upbraided by Scalia for refusing to overturn Roe vs. Wade; to unequivocally ban all affirmative action, and to absolutely deny legislatures the power to favor minorities in political gerrymandering.
Ironically, when Scalia was named to the court 10 years ago, commentators predicted that his intellect and charm would help forge a conservative consensus. Instead, his embittered rhetoric and sarcastic humor drove away the others, except for Justice Clarence Thomas. Demonstrating no interest in consensus building, he revels in dissent. Even when siding with the majority, he cannot resist writing separately to underscore the problems he sees as obvious in his colleagues’ reasoning. Unrepentant, he confesses his castigating opinions are “an unparalleled pleasure.”
The rift has been growing. The most pronounced split came over abortion, soon after Scalia joined the court. In Webster vs. Reproductive Health Services, in 1989, a bare majority stopped short of overturning Roe vs. Wade. O’Connor cast the crucial vote, for which Scalia rebuked her. Blasting her refusal to overrule Roe, Scalia dismissed her search for a middle ground as “irrational,” not to “be taken seriously.” Three years later, when O’Connor, Kennedy and Justice David H. Souter came together to preserve “the essence of Roe,” while permitting some further abortion restrictions, Scalia again acerbically assaulted what he dubbed their “keep- what- you- want- and- throw- away- the- rest- version” of defending that precedent.
Kennedy, who most often votes with the majority in cases decided by a 5-to-4 vote, has also been singled out for Scalia’s self-righteous brow-beating. When Kennedy wrote for the court that the 1st Amendment’s bar against government support for religion forbids public schools from having prayers at graduation ceremonies because of the “coercive” affect on students, Scalia countered this was “psychology practiced by amateurs” and “not to put too fine a point on it, incoherent.”
Even Chief Justice William H. Rehnquist was not spared from ridicule last term. In the Virginia Military Institute case, Scalia brushed aside Rehnquist’s terminology as imprecise. He dismissed as “simply wrong” the court’s ruling that the creation of a separate all-female program at a private college was unequal, and hence violated the 14th Amendment. Concluding, he called the chief justice’s reasoning “a great puzzlement.”
Besides biting personal rhetoric, Scalia’s opinions sound certain constant refrains. Positions he disagrees with are typically derided as “demonstrably false,” “incoherent” and “terminal silliness.” They are invariably debunked as acts “not of judicial judgment, but of political will.” He is just as likely as GOP presidential contenders Patrick J. Buchanan or Bob Dole to decry the Supreme Court’s “judicial dictatorship"--in spite of the fact that seven justices were appointed by Republican presidents.
Almost as predictably, Scalia casts himself as the defender of “tradition” against principles “favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this court.” Inexorably, colleagues are attacked for engaging in “judicial activism.” Scalia’s dissent in the gay-rights case thus opened by lamenting the court’s participation in the “cultural war” over homosexual rights. He then defended “tradition” and derided the court’s view that “animus” toward homosexuals was behind forbidding localities from protecting gays and lesbians. The “only sort of ‘animus’ at issue here,” in his words, was “moral disapproval of homosexual conduct.” Such animus was no less enforceable, according to Scalia, than animus directed toward murderers, polygamists and animal abusers.
In short, when the court departs from his way of thinking, Scalia gets nasty and sounds the old alarm of judicial activism. Yet, he is a steadfast judicial activist for causes he champions--namely, strong presidential power, political patronage, lowering the wall between church and state and ending all affirmative action. What he detests is the court’s promotion of the quest for equality and certain kinds of liberty, such as religious freedom for minorities.
Beneath the rhetoric, clearly every controversy is highly personal for Scalia. He gives no quarter. He relishes standing alone. He delights in pointing out his colleagues’ wrongs and doing battle with the forces of evil. In all this, he appears too full of himself. He thus dismisses criticism of his domination of oral arguments with questions from the bench, by explaining, “It is the academic in me. I fight against it. The devil makes me do it.”
Scalia’s stubbornly acerbic outspokenness earned him the nickname “Ninopath” when he served on an appellate court, before coming to the high bench. During the last decade on the Supreme Court, that trait cost him the votes of more moderate conservative justices. But more than that, he places self-importance above the court’s prestige as a governing institution--an institution above petty, personal bickering. The time is long past for Scalia to practice what Justice Felix Frankfurter called “judicial lockjaw."*